A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Thursday, 24 March 2016

Did Karadžić get a fair trial?

Today,
the International Criminal Tribunal for the former Yugoslavia (ICTY) will issue
its judgment in the case of one of its most high-profile defendants, former
Republika Srpska President Radovan
Karadžić. When the ICTY was established, the Secretary-General of the
United Nations noted
that it was ‘axiomatic’ that those tried by the international tribunal would be
tried in accordance with the highest international fair trial standards. The
Karadžić case highlights just how challenging it is for the ICTY (and other international
criminal tribunals like it) to ensure a fair trial in practice.

One
of the issues that has blighted the Karadžić trial throughout its lifetime has
been the non-disclosure by the prosecution of exculpatory materials by the
Prosecution. Under Rule 68 of the Rules of Procedure and Evidence, the
Prosecution is bound to disclose to the Defence any material in its possession that
may suggest the innocence of the accused, affect the credibility of Prosecution
evidence, or mitigate the guilt of the accused. As recently as last week, pursuant
to Karadžić’s 107th disclosure violation motion, the Trial Chamber found that
the Prosecution had failed to disclose relevant evidence, but (as with its many
previous findings of disclosure violations), found that no prejudice had been
suffered by the accused and therefore declined to grant any remedies for this
breach. Just yesterday, on the eve of the judgment, Karadžić’s legal advisor,
Peter Robinson, reported that
the defence had just received over 200 further pages of exculpatory evidence
from the prosecution.

In a
sense, the prosecution’s continued failure in fulfilling its disclosure
obligations is unsurprising, given the sheer volume of the case. Over the
course of the four-year trial, the testimony of 586 witnesses was received. Many
of these witness statements were admitted in written form, with limited or no
opportunity for cross-examination. Over 11,000 exhibits (totalling almost
150,000 pages) were received, and the transcript of the proceedings to date
exceeds 45,000 pages. The prosecution has disclosed over 2 million pages of
evidence. Moreover, the Tribunal has made extensive use of judicial notice of
adjudicated facts – including, as I note in my
book, such important facts as that Serb forces removed non-Serbs from
certain areas, that these forces mistreated detainees in detention facilities,
and that attacks were carried out on certain regions.

Karadžić
has represented himself throughout the trial, assisted by a small team of
support staff. While the Tribunal did overturn some of the Registry’s more restrictive decisions
on the funding of Karadžić’s defence team, and did grant him additional
time to prepare for trial, the defence team’s David has faced a
prosecutorial Goliath. Most recently, the President of the Mechanism for the
International Criminal Tribunals notified
the UN Security Council that a prosecution team had been established to prepare
for the anticipated appeal of Karadžić’s case. When Karadžić asked for funding
to resource an equivalent defence team, his motion was denied
as ‘purely speculative’ as there was no guarantee that the judgment would be
appealed, despite the clear implications on the equality of arms before the Tribunal.

Why should
it matter that such high-profile accused persons get a fair trial? Aside from
the fact that the Tribunals have already declared their procedures to reflect
the highest standards of fairness, and that any derogations from fair trial practices
may be utilised by domestic criminal justice systems as justification for their
own shortcomings, the impact of fairness on the legitimacy and legacy of the
Tribunals cannot be understated. Anything less than scrupulous protection of
the rights of the accused allow the Tribunals’ detractors to declare their
proceedings ‘show trials’, rigged against the defendants from the outset. With
the stakes so high, and the cost of international justice so enormous, nothing
less than the fairest of procedures will do.

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The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.